Brazil Supreme Court suspends “case of the century” for Indigenous land rights

Brazil’s Supreme Federal Court has indefinitely shelved a case that was set to drastically alter indigenous land right claims, leaving its fate uncertain.

On 15th September, the Supreme Court of Brazil suspended the “case of the century” that was set to rule on the “marco temporal“. This proposal, promoted by the agribusiness sector, would mean that Indigenous peoples that can’t prove they were physically occupying their lands on 5th October 1988 – the day the Brazilian Constitution was signed – would no longer have any right to those lands.

After having postponed the ruling several times, and after two members of the 11-member court revealed their decision (one for, one against), now a third member has asked for more time to make a decision. Thus, the case has been suspended without setting a date for the matter to be revisited.

The background on cases against Brazil’s Indigenous people

The agricultural lobby has always made clear its intention to exploit Indigenous lands. This is why it has pushed for the approval of the “marco temporal” (time limit) principle. This concept was first invoked during the land demarcation case regarding the Indigenous territory of Raposa-Serra do Sol, in Roraima state. The legal battle lasted for years, ending in 2009 with the Supreme Court ruling to assign the land to Indigenous people after it had been forcibly occupied by fazendeiros (large landowners) in the 1970s.

However, the ruling did not deter the assault on Indigenous lands. The marco temporal was pushed for again and even introduced into the PL 490/2007 bill, which allowed activities linked to mining and hydroelectric infrastructure construction on protected Indigenous lands.

The marco temporal then resurfaced recently in the land demarcation case for the Ibirama-La Klãnõ territory, located in the southern Brazilian state of Santa Caterina. A group of non-Indigenous residents (and a timber company) filed a case against the Xokleng people, aiming to chase them from their land and proceed with deforestation activities.

The plaintiffs, leveraging the marco temporal concept, claimed that on 5th October 1988, the Xokleng only inhabited small portions of the original territory and thus should no longer be allowed to claim rights on a majority of the land in question.

luta pela vida, brazil
A moment during the Luta Pela Vida protest in Brasilia © APIB

Marco temporal for all similar cases

The case was recently brought to the Supremo Tribunal Federal (STF), the highest court of law in Brazil. On 15th September 2021, the court decided to indefinitely suspend the case against the Xokleng. Now, the Supreme Court is assessing whether Jair Bolsonaro‘s government – which has always promoted a pre-constitution temporal limitation – has applied an excessively restrictive interpretation of Indigenous rights.

Recognition of the validity of the marco temporal (also known as the “milestone thesis”) would lead to the invalidation of all approved and pending demarcation procedures. This is because it was decided, in 2020, that the marco temporal would have “general repercussions” on all similar cases.

According to APIB (Association of Indigenous People of Brazil), a network of organisations safeguarding Native peoples, recognition of the marco temporal would spark conflicts and acts of violence against Indigenous peoples and communities. APIB also says it would encourage many illegal acts, such as mining for gold and other resources, deforestation, and land grabbing, all of which have been widely supported by the current Bolsonaro government.

Over 6,000 Indigenous people take to the streets in protest

In protests against what many have called the “case of the century”, over six thousand representatives of 176 different Brazilian Indigenous groups came together on 24th August in Brasilia, the capital of the South American nation. The protests, coordinated by APIB and named Luta Pela Vida (“Struggle for Life“), involved demonstrators camping out on the steps of the national Congress headquarters in Praça da Cidadania, where they held plenary sessions and marches.

While awaiting the verdict – which was originally set to be handed down on 25th August – thousands of Indigenous people marched in front of the Brazilian Congress to symbolically demarcate Brasilia with 1,296 placards, one for each Indigenous territory claimed by Brazil’s Native peoples. Two days later, demonstrators marched carrying a ten-metre coffin, a symbol of the sad destiny which they are faced with. In support of the protests in Brasilia, hundreds of demonstrators staged a protest outside the Brazilian embassies in London and San Francisco.

luta pela vida, brazil
The Luta Pela Vida camp in Brasilia © APIB

Brazil’s 1,290 Indigenous territories

According to a 2018 assessment by the Indigenist Missionary Council (CIMI), there are approximately 1,290 Indigenous territories in Brazil that are recognised as such by the 1988 federal Constitution. However, only 408 of these have been regularised, with 287 waiting for demarcation and over 500 being claimed by Indigenous peoples without having been granted any recognition from federal agencies.

If the court were to definitively rule against the marco temporal, Indigenous peoples could finally claim the right to their land as “protected Indigenous territory“. This would mean recognition for the territories that they have lived in and used for millennia, since well before the sixteenth-century colonial invasion and Brazilian independence in 1822.

Currently, Indigenous people do not own the land where they live, but they manage it as a common good. The benefits of this land management are evident: according to the Forest governance by indigenous and tribal peoples report, published by the FAO, deforestation in areas under Native management is three times lower than in other regions.

The threats continue

Unfortunately, threats to Indigenous people are not limited to the marco temporal. In fact, there are many laws that threaten the rights of ancestral populations, and APIB tried to bring demonstrators’ focus onto these issues during the protests in Brasilia.

Among the most pressing and contested threats is the “land grabbing bill” currently going through the Brazilian Senate. If approved, the bill would remove obstacles preventing corporations’ land grabbing practices. In 2019, approximately 30 per cent of deforestation and wildfires in the Amazon took place in “unclaimed” public areas. According to NGO Imazon, the approval of bill 2633 could cause further deforestation, up to 16,000 square kilometres by 2027, which is equivalent to almost three times the area of the Federal District (one of Brazil’s 27 federal states).

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